In a jolt to lesbians, gays, bisexuals and transgenders, the Supreme Court Wednesday held that consensual sex between adults of the same gender is an offence.

Setting aside the Delhi High Court verdict of 2009, the apex court bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhayay said: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable.”

Pronouncing the judgment, Justice Singhvi said: “We would like to make it clear that this court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity.”

“Notwithstanding this verdict”, the court said “the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the attorney general.”

Section 377 of the IPC that deals with unnatural offences says: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”

The court said those who indulge in carnal intercourse against the order of nature constitute different classes and could not claim that “Section 377 suffers from the vice of arbitrariness and irrational classification”.

It further said the high court while reading down Section 377 “overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 people have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution”.

The court ruling holding that homosexuality was an offence under Section 377 of the IPC came while it allowed a batch of petitions that had challenged the Delhi High Court’s July 2, 2009, now set aside, verdict decriminalising the sexual relationship between adults of the same gender under Section 377.

Delhi High court had held that “Section 377 IPC, in so far it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. It said that the “provisions of Section 377 IPC will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex, involving minors”.

The high court ruling came on a PIL by NGO Naz Foundation.

Referring to the affidavit filed by the ministry of health and family welfare, the court observed that the estimated HIV prevalence among FSW (female sex workers) is 4.60 percent to 4.94 percent, among MSM (men who have sex with men) is 6.54 percent to 7.23 percent and IDU (injecting drug users) is 9.42 percent to 10.30 percent. The total population of MSM as in 2006 was estimated to be 2,500,000 and 10 percent of them are at risk of HIV.

Pointing to the statewise break-up of total adult population, estimated adult HIV prevalence and estimated number of HIV infections as in 2009, the court said: “These details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by state or its agencies or the society.”

Addressing the question whether Section 377 IPC that criminalises the LGBT relationship violated the Article 21 of the constitution, the court said the test required a combined reading of Articles 14, 21 and 19 for judging the constitutionality of a provision which purports to restrict or limit the right to life and liberty, including the rights of privacy, dignity and autonomy, as envisaged under Article 21.

Having said this, the court said: “In order to fulfill this test, the law must not only be competently legislated but it must also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and the principle of proportionality.”

Posing the question whether the high court was justified in entertaining challenge to Section 377 IPC, despite the fact that the Naz Foundation had not laid actual foundation to support its challenge, the apex court said: “It is, therefore, apposite to say that unless a clear constitutional violation is proved, this court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.”

Referring to the 172nd Law Commission Report which had specifically recommended deletion of that section that criminalises LGBT relationships, the court said “the issue has repeatedly come up for debate.

“However, the legislature has chosen not to amend the law or revisit it.

“This shows that parliament, undisputedly the representative body of the people of India, has not thought it proper to delete the provision,” the apex court said.

“Such a conclusion” the court said, “is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, parliament has not made any amendment in the law.”

However, the court said: “While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.”